REPORTABLE ZLR (10)
Judgment No. SC 9/07
Civil Appeal No. 82/06
FIRST
MUTUAL LIFE LIMITED v JACKSON MUZIVI
SUPREME COURT OF
ZIMBABWE
CHEDA JA, ZIYAMBI JA &
MALABA JA
HARARE, JANUARY 23 &
MAY 29, 2007
H Zhou, for the
appellant
The respondent in
person
CHEDA JA: The appellant was the respondents employer. The
appellant dismissed the respondent from its employment. The matter
went to the Labour Court and it determined the matter in favour of
the respondent in judgment No. LC H/163/04.
The appellant
appealed to this Court against the Labour Courts decision.
On 15 March 2004 this
Court (CHIDYAUSIKU CJ) in judgment No. SC 62/03 dismissed the
appellants appeal and issued an order, part
of which read as
follows:
(1)
That
the respondent be and is hereby ordered to reinstate the appellant
with no loss of salary and benefits with effect from the
date of
suspension.
In the event that reinstatement is no longer an option the
respondent is ordered
to pay the appellant damages in lieu of reinstatement the
amount
of which the parties may agree upon failure of which the party
may
refer the issue to the Tribunal for quantification.
The parties failed to agree on the amount of damages in relation to
all the claims raised by Muzivi, the respondent in this appeal.
In May 2004 the
respondent filed an application to the Labour Court for
quantification of back pay and damages.
The matter was heard
by President Hove of the Labour Court, and an order was made listing
damages that the Labour Court held should
be awarded to the
respondent as follows:
The order of the court is therefore that the employer pays to Muzivi
the following:
(1)
Back pay calculated from the date of supension to 7 April
2004. The salary scale
applicable for purposes of calculating back pay is that
of a managerial grade as estimated by Muzivi on
pages 10 and 11 of his
final submissions. These amounts are to be paid together
with interest
at the prescribed rate calculated from the date each
amount fell
due to the date of payment in full.
(2) That the employer pays commission in relation to the sale
of two policies
each month from the date of suspension to 7 April 2004. The
amounts should
also be paid with interest at the prescribed rate
of payment in
full.
(3) Cash
in lieu of leave and notice pay as stated in the body of my
decision
with interest calculated from April 2004 to the date of
payment
in full.
(4) Annual bonus paid to other employees as stated
in the body of my
decision. The amounts are to be paid together with
interest
at the prescribed rate calculated from the date each
amount
fell due.
(5) Pension withdrawal benefits as
outlined in the body of my decision.
All amounts due in this regard is to be paid together
with interest
at the prescribed rate from the date of this order to
the
date of payment in full.
Three
months medical aid contributions as originally agreed between the
parties and proven medical expenses in terms of my decision.
These
amounts are to be paid with interest at the prescribed rate from the
date each amount becomes due to the date of payment
in full.
Gratuity
in terms of the body of my decision paid with interest calculated
from the date of this order to the date of payment in
full.
Insurance
benefits in terms of the body of my decision. The amounts are to be
paid together with interest at the prescribed rate
calculated from
the date of this order to the date of payment in full.
A
house of comparable value to the Kadoma house belonging to Muzivi
which was sold by the employer. The house is to be paid on
the same
terms as originally agreed between the parties.
Fees
disbursed by Muzivi for his childrens fees as outlined in the
body of this decision.
Muzivi
to be refunded the amounts he paid in relation to the courses he
attended as per the body of my decision.
9
933 353 shares as outlined in the body of my decision.
A
car as outlined in the body of my decision.
Offer
Muzivi items that were in his office as outlined in my decision if
these items are no longer available, items of similar value.
Two
years salary as damages for loss of employment at current rates.
This amount is to be paid together with interest at the prescribed
rate calculated from the date of this judgment to the date of
payment in full.
The
employer is to make the following deductions from all the amounts
due to Muzivi
what the employer has already paid;
net earned by Muzivi from his association with Choice Quality
Peformance Management.
I now turn to examine whether
the Labour Court complied with the order of the Supreme Court.
The Concise Oxford
Dictionary gives the following definition of quantify:
Quantify
to determine quantity of; measure or express as quantity
In the very first sentence of its judgment the Labour Court stated as
follows:
This
is an application for quantification of damages. The basic
principle in the assessment
of damages is that the plaintiff should be placed in the
position he or she
would have been had the contract been fully performed.
Having started by stating correctly what the application before it
was about in the very first sentence, it is not clear why the
Labour
Court ended up not doing what it was clearly directed to do.
The Labour Court was
supposed to assess and determine the monetary value (quantum)
of each claim that was to be awarded to the respondent (the
employee). The employer was supposed to be advised what exactly it
was supposed to pay to the employee in figures. What the Labour
Court did was not quantification at all. What was required were
specific monetary awards in respect of each claim so that the
employer would know how much it was to pay. A mere reference to
awards
being made is not quantification. How much should he get by
way of back pay? What is the employer to pay him by way of
commission?
How much is due as cash in lieu of leave? How much was
to be paid as gratuity? How much was to be paid as fees for
children?
The Labour Court should
have dealt with each claim and established the exact amount. It did
not do that.
Further to that, the
Labour Court failed to observe certain clear principles taken into
account in quantifying damages. For example,
an award for an unknown
amount of fees is not appropriate. The employee was supposed to
prove what he spent as childrens fees,
then claim to be refunded
that amount. In the absence of such determination, what happens if
he demands a figure which the employer
disputes? The matter may have
to go to court again for determination of that amount.
The suggestion that the
employer failed or refused to furnish the respondent with the
appropriate salary scale suggests a wrong approach
to the issue.
It is the respondent
who had the onus to prove his claims.
If he was dismissed
when he was in a certain grade, it was for him to tell the court what
salary scale applied to him at the time
of his dismissal. He could
not just claim that he was in a certain grade whose salary scale he
did not know. This would suggest
that he did not know what he was
claiming.
Payment of an annual
bonus, is generally discretionary on the part of the employer. It
could not be said that the employee would
have been awarded a bonus
under all circumstances. A bonus would have depended on a clear
record of performance. Having been suspended,
it could not be said
that the employee performed so well that he would have been entitled
to a bonus.
On pension withdrawals,
it is not clear what the employees entitlement is. What were the
withdrawal benefits? Who was to withdraw
the benefits and from whom?
This issue remains vague, leaving the employer unclear as to what it
is to pay.
Reference to what the
President says is as outlined in the body of my decision does
not inform the employer what it is to pay
as no figures were given in
the body of her decision. In any case, a court order should set out
the payments clearly and not refer
to the body of the decision.
Any enforcement of the
order will depend on what the order says and not what was said in the
body of the decision, which may not be
easy to ascertain even if one
read the judgment. The order of the court should be clear enough to
stand on its own.
The employee would have
been entitled to the use of a car in the performance of his duties.
Once he was suspended the benefit of
the use of a car would under
normal circumstances fall away. The order that a car be purchased
for the employee is without legal
basis. Worse still, should he be
given a new or used car? What make or model of a car is he to get?
Is he to get a Toyota or Mercedes
Benz?
Commission in relation
to policies depends on the number of policies sold and the monetary
value of the policies. In the absence
of any policies proved to have
been sold any award of commission is incompetent.
The award for medical
aid contributions is also unclear. If the employee incurred any
medical expenses during the period of suspension
then such expenses
should be proved before reimbursement is ordered.
It is not clear on what
legal basis an employee who has been dismissed from a company should
be awarded shares in the company and
be allowed to take away office
furniture from it. Further, there is no logical basis for awarding
an employee a salary at current
rates as opposed to the rates
applicable at the time of suspension.
The award of a house is
unreasonable. If the employee wishes to recover the cost of his
house sold by the employer this would be
the subject of a different
claim for the recovery of that amount and not a claim under the
Labour Relations Act.
I have outlined some of
the awards made in order to illustrate the fact that the Labour Court
failed to apply basic principles governing
the quantifications of
damages.
As things stand, the
Labour Courts decision remains so vague that neither the employer
nor the employee is properly informed of
what the damages to be paid
are in monetary terms.
Accordingly the order
of the Labour Court is set aside.
The matter is remitted
to the same court for it to make an appropriate assessment and
quantification of damages in accordance with
the ruling of the
Supreme Court in judgment No. SC 62 of 2003.
Since the failure to
properly quantify the damages was that of the Labour Court, I do not
consider it appropriate to make an order
for costs against either
party.
There will be no order
as to costs.
ZIYAMBI JA: I agree
MALABA JA: I agree
Atherstone and Cook,
appellants legal practitioners
